Will: ERA began as a farce but has ended in tragedy

WASHINGTON – Karl Marx was no more mistaken than usual when he said that historic people and events appear twice, first as tragedy, then as farce. Today’s advocates of a musty fragment of the 1970s, the Equal Rights Amendment, are demonstrating that something that begins as farce can reappear as tragedy, because abuse of the Constitution is tragic.

With Illinois slouching toward bankruptcy, its Legislature must have better things to do, yet it recently ratified the ERA. But can a legislative cadaver be ratified?

On March 22, 1972, a stampeding Congress sent to the states for ratification this constitutional amendment: “Equality of rights under the law shall not be denied or abridged … on account of sex.” Without seriously considering what this would add to the 14th Amendment’s guarantee to “any person” of “equal protection of the laws,” the House and Senate passed it 354-24 and 84-8, respectively. The irony of a gallant Congress behaving cavalierly in several senses was surely lost on ERA supporters.

Legislators sworn to “support and defend” the Constitution voted to clutter it with language the meaning of which they did not – could not – know. The meaning was irrelevant to the main purpose, which was to grandstand with an amendment the first, and for many advocates the sufficient, function of which was “consciousness-raising” – to “put women in the Constitution.” Another purpose was to arm liberal judges with language into which they could pour whatever content they wanted. So, the ERA would either be a constitutional nullity or license for unconstrained judicial improvising.

Because the Constitution’s framers believed that the most important decisions should not be taken on slender majorities, and that frequent amendments would impair the Constitution’s majesty, they required amendments to pass both houses of Congress with two-thirds majorities and receive ratification by three-quarters of the states. Since then, constitutional morality has evolved the principle that ratification should occur during a predetermined period of deliberation, reflecting (in the Supreme Court’s words) a “sufficiently contemporaneous” consensus of at least (nowadays) 38 states “at relatively the same period.”

So, Congress, as has been customary since the 18th Amendment (Prohibition, 1919), required ERA ratification within seven years, which was generous: The first 10 amendments (aka the Bill of Rights) were ratified in 27 months. Leaving aside the 27th Amendment pertaining to congressional salary increases (dormant for 203 years, resuscitated in the anti-Congress fever of 1992), the average time for ratifying amendments since the first 10 has been 16 months, and no amendment has taken even four years. The 26th Amendment (lowering the voting age to 18) took less than four months.

Hawaii ratified the ERA the day Congress passed it. Nebraska, rushing to be second, did it wrong and had to do it again. Twenty states ratified it in three months, most without hearings. In January 1977, four years and 10 months into the process, Indiana became the 35th and last state to ratify it. Twenty-six of the 35 explicitly referred to the seven-year deadline in their resolutions of ratification. When the seven years expired, those supposedly seeking equal treatment for women sought and received special treatment. By a simple majority, not the two-thirds required for constitutional amendments, a supine Congress extended the deadline for 39 months – but only for states that had not ratified it, in order to prevent new rescissions. It died in 1982, in its 123rd month, having gone longer (65 months) without a single additional state’s ratification than it took to get all of its original 35. By which time five of the 35 (including, deliciously, Nebraska) had rescinded their ratifications.

The only federal court to rule on the four-year extension held it unconstitutional, and said all rescissions were valid. Now, however, ERA advocates argue that the clock can never expire on ratification – states can vote over and over (as Illinois has done) until they ratify it, and no ratification can be rescinded. In 2017, Nevada ratified the cadaver, so ERA proponents insist they are just one state away from victory. But, inconveniently, ERA supporters in Congress have repeatedly reintroduced it (most recently in January 2017), thereby conceding that the process must begin again.

Which is farcical. In 1972, there were 13 women in the House and two in the Senate. Today there are 90 in the House and 23 in the Senate, reflecting 46 years of legal and social changes that a prompt ratification of the ERA would not have hastened and that consignment of the ERA to the attic of 1970s nostalgia – hip-hugging bell-bottoms, etc. – will not impede.